One way or another, our judges turn out to be political animals

Posted: Monday, November 27, 2000

By JERRY SCHWARTZAP National Writer

When Florida's Supreme Court breathed life into Al Gore's quest for the White House, the response from some Republicans was immediate: What do you expect from six Democratic justices and an independent, all appointed by Democratic governors?

It's an understandable reaction, says Roger Pilon, vice president for legal affairs at the conservative Cato Institute in Washington. Normally, a judge who has some connection to a case will step aside. But that wasn't an option in the Republican suit to stop hand recounts.

''Obviously, they can't'' step aside, Pilon said. ''Or everyone would recuse themselves, and there would be no one left to judge.''

The focus on the Florida Supreme Court has highlighted an oft-overlooked contradiction of the American judicial system: Our judges get their jobs through politics, but once they are on the bench they are expected to be nonpartisan.

In some states, the political nature of the job is clear. In Alabama, for example, judges are elected and identified on the ballot by party affiliation.

But in neighboring Florida, politics are not so evident. A commission -- three appointees of the governor, three of the state bar association, and three members selected by the other six -- gives the governor a list of three to six candidates for each vacancy on the Supreme Court.

The governor must pick from this list; the nominee serves only until the next general election, at which point he or she must be retained by the voters for a six-year term, though no Florida justice has ever been fired by the voters.

It would be naive to think that a chief executive does not consider party affiliation.

Nine of 10 federal appointees are of the same party as the president who nominates them, said William G. Ross, professor at Cumberland School of Law at Samford University in Alabama. In the last century, Democrat Woodrow Wilson chose the highest percentage of members of his own party (98 percent), while Republican Herbert Hoover nominated the lowest (75 percent), he said.

Once on the bench, Ross said, ''most judges try to be as nonpartisan as possible, as reputable as Caesar's wife,'' but they cannot be entirely apolitical.

''There is no way to take politics out of the judicial process,'' Ross said. ''We wouldn't want to take politics out of it. These are public questions, matters of public policy. All we want is for our judges to be as objective as possible.''

The public's expectation, says Alan Sobel, executive vice president of the nonpartisan American Judicature Society in Chicago, ''is that whatever their background may be, when they reach the bench they will put aside personal preferences and have allegiance only to the law and to the facts of the case. And I think that's a reasonable expectation.''

He suggested that critics who harp on the political affiliation of judges are often ''affected by their own self interest. ... I don't that they're objective observers when they have a stake in the outcome.''

Stephen B. Presser, a professor of legal history at Northwestern University in Chicago and co-author of a paper on judicial appointments, says it should be no surprise that the Florida court would be accused of conspiracy with the Democrats: In the wake of the battle over Bill Clinton's impeachment, ''we can't see anything except through partisan eyes.''

But Presser said party affiliation ''doesn't tell you anything,'' He noted that Terry Lewis, the Circuit Court judge overruled by the Florida Supreme Court, was a Democrat.

There have been other unpredictable judges. In 1974, three judges appointed to the U.S. Supreme Court by Richard Nixon joined their brethren in ordering the president to turn the Watergate tapes over to Congress, precipitating Nixon's resignation.

David Souter, nominated by George W. Bush's father, has turned out to be a court liberal. Dwight Eisenhower rued his pick of Earl Warren, a California Republican who ushered in an era of very un-Republican judicial activism.

To the Cato Institute's Pilon, that activism is a cornerstone of Democratic policy, and judges who practice it -- like the Florida Supreme Court, which disdained ''hypertechnical reliance upon statutory provisions'' in favor of ''the will of the people'' -- are partisan.

There is no ''ultimate answer'' to the question of politics and judges, Pilon said.

''Judges do bring with them a certain conception of the law, and a certain conception of how to interpret the law ... ,'' he said. ''It is inherent in the system, given that appointments are made by political officials. This is what the founders intended. The ultimate check is the political check.''